Common Motor Vehicle Offenses
Operating Under the Influence (G.L. c. 90, €24)
also known as OUI, DWI, and DUI
To successfully prosecute an individual charged with operating a motor vehicle while under the influence of intoxicating liquor, the prosecutor need not prove that the motorist was “drunk,” only that the motorist’s consumption of alcohol had diminished his ability to safely drive his motor vehicle. The Massachusetts Supreme Judicial Court has a very expansive definition of “operation.” To be “operating” a motor vehicle, the prosecutor need prove no more than the individual was sitting in his car and that the key was in the ignition. Commonwealth vs. Ginnetti, 400 Mass. 181, 184 (1987). According to the SJC, an individual need not be driving his motor vehicle to be operating it. While absurd, this is current state of the law.
The descriptions below of the penalties for OUI offenses is a guide only. It does not include all potential penalties, fines or other expenses related to an OUI conviction. With the passage Melanie’s law, the Massachusetts legislature has made OUI penalties outrageously and unnecessarily punitive.
I. Breathalyzer
A. Fails BT w/ .08 or greater
- 30 day loss of license
- terminates on plea/trial/dismissal
- no 15 day temporary license available
B. Refusals
- length of suspension depends on the number of prior convictions
- No priors = 180 days (CWOF should not count as a prior, but RMV)
- under 21 = 3 years
- 1 prior = 3 years
- 2 priors = 5 years
- 3 priors = lifetime
- prior conviction for OUI w/ serious bodily injury = 10 years
- no hardship licenses available for period of suspension as result of refusal to take breath unless defendant receives 24D disposition
- refusal suspension runs consecutively with any other suspensions related to the conviction, or assignment to program (unclear which suspension runs first)
- judge may reinstate license after acquittal, dismissal or nolle prosequi
- no 15 day temporary license available
- after refusal vehicle impounded for 12 hours
II. OUI Resolutions
A. 1st Offense:
1st Offense or Prior OUI > 10 years – Alternative Program – Misdemeanor
24D (applies unless defendant is less than 21 and blows above .20)
- probation not more than 2 years
- assigned treatment program
- loss of license for 45 to 90 days
- disposition available after trial conviction
- not available if death or serious injury
- hardship available after 3 business days
- no interlocking device required unless prior OUI
1st Offense – No Alternative Program – Misdemeanor
- fine $500.00 to $5,000.00
- prison: up to 2 years HOC (may serve weekends/evenings/holidays)
- 1 yr LOL
- hardship license 3 – 6 months
B. 2nd Offense (1 prior conviction or assignment) – Misdemeanor
- Fine $600.00 to $10,000.00
- Prison: Not less than 60 days or more than 2 ½ yrs HOC
- Mandatory 30 days
- May be served at designated facility for alcohol issues
- If less than 2 prior convictions or assignments eligible for 2 years probation & 14 day inpatient residential alcohol treatment
- 2 yr LOL
- hardship license: 1 yr to 1 ½ yrs w/ interlocking device
- eligible for 90:24D if prior over 10 yrs old, but will require interlocking device during hardship
C. 3rd Offense (2 prior convictions/assignments) – Felony
- Fine $1,000.00 to $15,000.00
- Prison: 6 mos. to 2 ½ yrs HOC or 5 yrs State Prison
- Mandatory 150 days
- may serve at designated facility for alcohol issues
- 8 yr LOL
- hardship license 2 yrs to 4 yrs
- interlocking device
D. 4th Offense (3 prior convictions/assignments) – Felony
- Fine: $1,500.00 to $2,500.00
- Not less than 2 yrs nor more than 2 ½ yrs; or
- Not less than 2 ½ yrs to 5 yrs State Prison
- Mandatory 1 yr
- 10 LOL
- hardship license 5 yrs to 8 yrs
- interlocking device
E. 5th Offense (4 prior convictions/assignments) – Felony
- Fine: $2,000.00 to $50,000.00
- 2 ½ yrs to 5 yrs State Prison
- Mandatory 2 yrs
- Lifetime LOL
